Follow Us On

Several professional photography trade organizations have banded together to study Instagram’s Terms of Service, and today the American Society of Media Photographers issued the following press release:

Photographic Community, Led by The American Society of Media Photographers, Deems Instagram Terms Too Far-Reaching

PHILADELPHIA, Aug. 22, 2013 (GLOBE NEWSWIRE) — The American Society of Media Photographers (ASMP), joined by National Press Photographers Association (NPPA), The Digital Media Licensing Association (PACA), American Photographic Artists (APA), This Week in Photography (TWiP), Professional Photographers of America (PPA), Coordination of European Picture Agencies Stock, Press and Heritage (CEPIC), Graphic Artists Guild (GAG) and American Society of Picture Professionals (ASPP), has mounted a campaign to address the far-reaching Terms of Use of the image sharing service Instagram. Since 2010, more than 16 billion images and movies have been uploaded to Instagram. The organizations believe that few of the users who share images on the site understand the rights they are giving away. ASMP has issued “The Instagram Papers,” information in the form of essays and analysis about the Terms of Use in which the key issue is that users should have the ‘right to terminate’ their agreement with Instagram, allowing them to remove permissions for the use of their identities and content at any time.

Specifically, the Terms of Use give Instagram perpetual use of photos and video as well as the nearly unlimited right to license the images to any and all third parties. And, after granting this broad license to Instagram, users also relinquish the right to terminate the agreement. Once uploaded, they cannot remove their work and their identity from Instagram. Additionally, in the event of litigation regarding a photo or video, it is the account holder who is responsible for attorney and other fees, not Instagram.

Moreover, while Instagram’s agreement includes the right to sublicense images, it specifically excludes the need to ever pay creators, regardless of the way the company may use or sell their work. The photographic community believes strongly that fair compensation for the creators of work is a vital component of a fair agreement.

According to ASMP Executive Director Eugene Mopsik, “While clearly benefiting Instagram, the rights of imaging professionals and general users stand to be infringed upon in an unprecedented way. We are concerned that not only have Instagram’s Terms of Use gone beyond acceptable standards, but also that other social media providers may use these onerous terms as a template for their own agreements.”

Peter Krogh, ASMP’s Digital Standards & Practices Chair, said, “As online services become larger repositories of intellectual property, power has shifted away from the user and toward the company provider. Unless changes are made by Instagram, we believe the terms will have a profound and negative impact on imaging professionals, publishers and general users.”

In the coming weeks and months ASMP, along with the other listed organizations, will continue to reach out to gain support in addressing these egregious terms before they become the industry standard.

Photographer Richard Noble has reached a tentative settlement with Nike over a copyright infringement claim, filed a second infringement claim against various t-shirt vendors, and is preparing to file new claims against other infringers in the coming weeks, according to his attorney, Edward Greenberg.

All of the claims allege unauthorized use of an iconic image of athlete Bo Jackson, which Noble shot in 1987. The photograph became the poster image for a legendary ad campaign called “Bo Knows” that helped turn Nike into the leading athletic footwear brand.

“Mr. Noble has not licensed this image to anybody for any purpose in some 20 years,” says Greenberg.

Noble sued Nike in June, and was seeking unspecified damages for multiple unauthorized uses of the Bo Jackson image. Nike’s alleged infringement dated back to 2007.

Greenberg declined to discuss the terms of the settlement agreement with Nike, which is still pending, or explain why Noble waited until June 2013 to sue Nike for infringements that took place as long as six years ago. But court papers suggest Noble wasn’t aware of them until more recent infringements led him to suspect past infringement, and search for them.

According to the claim he filed against Nike, Noble was contacted by ESPN and Nike last fall for permission to use the image of Bo Jackson for various projects. ESPN wanted to use it in a documentary film about Bo Jackson, while Nike wanted it for unspecified marketing campaigns, and the company told Noble it wanted to buy “all rights” to the image.

Noble declined both requests, and asked Nike for more details about how they wanted to use the image, so he could propose a fee for a limited license. Nike told Noble in late 2012 they were eager to start using the image, but Noble told the company in mid January 2013 to “hold off” pending a license agreement to be determined, according to the lawsuit. He also told Nike explicitly that he would not agree to a “buy out” of the image.

Then, on January 23, 2013, Noble discovered that Nike had already started using the image. According to Noble’s lawsuit, the company admitted it had distributed the photo on Facebook and Twitter, and had provided it to ESPN for use in the network’s promotion of the documentary film about Bo Jackson.

The lawsuit said that Noble then discovered that a number of other companies had used the image in promotions of Nike products. Those other companies include Steiner Sport Memorabilia, Major League Baseball, Sneaker Bar Detroit and Nice Kicks. Noble alleged in his lawsuit that Nike provided the image to those companies, and authorized them to use it without Noble’s permission.

In addition, Noble discovered that Nike had used the image in various ads and promotions for its products in 2007, 2009 and 2012 without his permission.

Noble says in his claim that he has asked Nike for a full accounting of its past uses of the image, and uses by other companies that were facilitated by Nike (i.e., for which Nike provided the picture and told those third parties it was OK for them to use the image).

He has also told Bo Jackson himself to stop using the photo as an autograph handout because he has not authorized Jackson to do that, according to the lawsuit.

Noble is planning to file copyright infringement claims against other companies besides Nike who have used his Bo Jackson image without permission, Greenberg told PDN.

So far, only one other claim has been filed. That claim, against Blank Shirts Inc and a number of other t-shirt sellers. According to the claim, Noble discovered in June that the companies were using the Bo Jackson image on t-shirts for sale through various Web sites. Noble is seeking unspecified damages from the defendants in that case.

Greenberg says he will file a third lawsuit next week against other companies who have used Noble’s image of Bo Jackson without permission. Other lawsuits could follow that, he said.

Photographers have not only been “Royally Robbed,” but the British government has violated their human rights, according to a UK group called stop43.org.uk. Photo trade groups in the US, including NPPA, ASMP, PPA, APA and PACA have predicted “a firestorm of international litigation.”

The cause of all the fuss? Changes in UK law that pave the way for regulations under which publishers and others can use orphan works–ie, photographs and other works for which the copyright owner cannot be identified or located–without violating copyright. The changes to the law also enable the British government to establish a central registry and licensing agency for visual works, analagous to the musical licensing agencies ASCAP and BMI.

The changes are part of the so-called Enterprise and Regulatory Reform Act, which provides a framework but few details of how the UK’s orphan works law and copyright registry might work. The British government is expected to issue detailed regulations this fall. Meanwhile, the government says its intent is to make the licensing of intellectual property more efficient in the digital age, and that it will protect the interests of copyright holders at the same time.

Absent the details about how the law will work, however, photographers and other copyright holders are left to speculate on the actual consequences of the new laws. Reactions among photographers (and their trade groups) range from wariness to outrage.

“I’m not terribly worried at all” about the orphan works provision of the new law, says David Hoffman of Editorial Photographers UK. “It’s annoying there’s so much confusion, hysteria and anger about that.

“I’m much more concerned about [the collective licensing provision]. It takes control away” from photographers over who may license their images, for what purposes, and for how much. “But what control do I have anyway?” Hoffman adds, explaining that thousands of his images are used illegally. He estimates he loses tens of thousands of dollars’ worth of licensing fees each year as a result.

Paul Ellis of stop43.org also dismisses the orphan works part of the legislation as a “red herring.” Users of orphan works are likely to have to show that they searched diligently for the copyright owner of the work, and the government will still collect a fee for the use in case the rights holder ever steps forward. Ellis predicts almost nobody will bother licensing orphaned photographs.

“The system will be costly to use,” once licensing, search and administrative costs are added up, he says. “And if the costs of acquiring orphan works licenses are higher than a normal license fee, you’ve built an incentive to infringe.” (Courts in the UK award little more than a normal license fee for infringement, if an image owner bothers to sue and win, he notes.)

Ellis is far more enraged about the proposed registry, called an extended rights collective. The idea behind that is that the government would set prices for lots of small commercial and editorial uses of images, collect fees for those uses, and disburse the payments to copyright holders, provided they register. Ellis points out that anyone who doesn’t register won’t get paid. And although copyright holders may be able to opt out of the system, it might be a difficult to do that.

“The effect of this will be to drive down prices, and drive value out of creators’ pockets,” Ellis predicts. But there’s a bigger principle at stake, he says. “It utterly breaches the conception that the owners of property have the exclusive right to exploit that property. If you punch a hole in that principle, you’re on very shaky ground.

“Extended collective licensing is an arbitrary deprivation of property. The government is confiscating property,” Ellis says, asserting that it amounts to a human rights violation under international law, which he says guarantees “the right to peaceable enjoyment of your property.”

The major photo trade associations in the US, along with the Graphic Artists Guild, sent a letter last fall to UK officials objecting to the new laws on the grounds that images by US copyright holders would be swept up in the UK licensing system–and used in violation of international treaties as a result.

ASMP executive director Eugene Mopsik, who was one of the letter’s signatories, says of the UK’s new orphan works law: “It’s not the end of the world, but there are significant concerns,” although he adds that it is difficult to predict the effects of rules that haven’t been written yet. He agrees that the issues of orphan works and widespread theft of images online are issues that governments have to address. But he says, “The devil is in the details.”

Mopsik says metadata is easily stripped from digital image files, so under orphan works laws, photographers can easily lose control of their intellectual property through no fault of their own. Their work can be used in ways they find objectionable, and unauthorized uses can undercut their markets–and their income, he says.

But he says ASMP is not opposed to orphan works laws provided that photographers are given certain protections, including the exclusion of any commercial uses under orphan works legislation, requirements that users search diligently enough for copyright holders, and requirements that users post notice of their intent to use an image–so photographers have a chance to learn if their images are about to be classified as orphan works.

How good or bad it the orphan works law ends up being for photographers, Mopsik says, depends upon how lawmakers define terms like commercial use and diligent search.

Jeff Sedlik, co-founder, president and CEO of the PLUS Coalition, is also opposed to collective licensing systems that are opt-out (like the UK system seems to be) rather than opt-in. But he believes it is incumbent upon copyright holders to register their works, in order to prevent those works from becoming orphans because the metadata is inevitably stripped away. But the registry must be centralized–or consist of registries in different countries that are all connected together and searchable at once–in order to effectively protect copyright, he says.

A federal appeals court has ruled that artist Richard Prince did not infringe photographer Patrick Cariou’s copyrights by reproducing several dozen of Cariou’s images without permission. The appeals court said 25 out of 30 works by Prince at the center of the dispute made fair use of Cariou’s photographs.

The decision reversed a lower court ruling that held Prince liable for infringement.

Hirn’s photo story about one of the Boston bombing suspects appeared in a Boston University student magazine in 2010.

Johannes Hirn, the former Boston University journalism student who shot a photo essay about one of the Boston bombing suspects, has removed the images from a PhotoShelter website and is referring licensing requests to Barcroft Media.

The images, comprising a 2010 photo essay called “Will Box for Passport,” feature the so-called “black hat” Boston Marathon bombing suspect Tamerlan Tsarnaev. The story is about Tsarnaev’s bid to become an Olympic boxer, and shows him training in a mixed martial arts gym in Boston.

The story was published in 2010 in a graduate student magazine of Boston University’s College of Communication, where Hirn was a student. Hirn shot the story as a final assignment for a photojournalism course he took while at BU, according to an NPPA report.

Tsarnaev was killed last night in a shoot-out with police. After he was identified, news outlets found Hirn’s photo essay. Reporters used Hirn’s photo captions to profile Tsarnaev. A number of media outlets have also copied and distributed Hirn’s photos without permission before he removed them from the Photoshelter site.

“We have seen multiple outlets lift screenshots of the images, but the hi res images are not accessible through PhotoShelter without direct permission from the photographer,” Andrew Fingerman of Photoshelter told PDN just before Hirn took the pictures off the site.

Hirn announced that Barcroft Media–a UK-based licenser of editorial content–is the exclusive distributor of the images. He also announced, “I am not available for interview or comment.”

Hirn earned a PhD in particle physics before attending BU, where he earned a degree in science journalism, according to the NPPA report. He now works in communications for an astrophysics lab at the University of Toronto.

Intent on making a quick buck from the Boston Marathon bombing, a self-publisher allegedly offered an e-book full of stolen news photos for sale on Amazon.com, titled “The Boston Bombings First Photos.”

The NPPA reported yesterday that the book, published by a man identified as Steve Goldstein, included more than 60 images used without permission from The Associated Press, Getty Images and The New York Times. Goldstein was charging $7.99 per download.

According to the NPPA report, a New York Times attorney sent a cease-and-desist letter to Goldstein. In his response, Goldstein wrote, “We will stop using the photos that you mention. Sorry for the use without permission.”

American Photographic Artists (APA) and the National Press Photographers Association (NPPA) announced today that they are joining an ongoing class action lawsuit against Google, alleging that the Google Books Search program is a violation of the copyrights of photographers and other visual artists.

Under the Google Books Search program, Google has been working with several libraries to scan books and periodicals and make the content available through search engine results. But a group of plaintiffs–including photographers and photo trade associations–filed a class action lawsuit in 2010 to stop Google from copying, scanning or displaying copyrighted photos and other visuals in printed publications without permission.

“I feel it is the NPPA’s responsibility to protect that principle of ownership, and not allow companies like Google to infringe upon our rights uncontested,” NPPA president Mike Borland said in a statement issued today by NPPA.

The lawsuit was spearheaded by American Society of Media Photographers (ASMP). Other lead plaintiffs include the Graphic Artists Guild, Picture Archive Council of America (PACA), Professional Photographers of America (PPA), the North American Nature Photography Association (NANPA), and a number of individual photographers.

ASMP said when it filed the lawsuit that the goal is to make sure photographers are “fairly and reasonably compensated” when their works are distributed through Google search results.

In joining the lawsuit, APA national president Theresa Raffetto said in a prepared statement: “Holding Google Books responsible for their flagrant copyright infringement is something APA has been working on and we’re pleased to continue this fight in conjunction with the other plaintiffs.”

A New York wedding photographer and a New Jersey gay couple who are jointly suing an anti-gay group for unauthorized use of an engagement photo (shown at right) are now going after a Colorado gun rights advocate, too.

The Denver Post reports that attorneys for the gay couple, Brian Edwards and Thomas Privitere, have filed papers in a Colorado federal court to add Dudley Brown and two gun groups–Rocky Mountain Gun Owners and the National Association for Gun Rights–to their lawsuit.

Edwards and Privitere, along with photographer Kristina Hill, sued a Virginia-based group called Public Advocate of the United States (PAUS) last year for unauthorized use of Hill’s engagement photo of the couple in political attack ads (shown below). The ads, distributed as campaign mailers in Colorado, were part of an effort to unseat candidates who had supported a push for same-sex unions in the state.

During the discovery process in the case against PAUS, the plaintiffs learned from e-mail records that Dudley Brown was behind the mailers, and that he worked with PAUS to distribute them, according to the Denver Post report. Brown is founder and executive director of Rocky Mountain Gun Owners, and executive VP of the National Association for Gun Rights. He allegedly used e-mail accounts associated with both organizations to correspond with PAUS about the campaign mailers.

The Denver Post report quotes one e-mail in which Dudley told PAUS: “What I propose is that [PAUS] pay for mailing. … My staff and I would do all the work, but we’d want [PAUS] to sign off, put its name on the dotted line, and pay for the mailings. I would counsel mailing slick and glossies, with the ‘two men kissing’ photo.”

The plaintiffs are charging infringement of Hill’s copyright and unlawful appropriation of the likenesses of Edwards and Privitere.

An author who was stalked and bullied online for her efforts to enforce her copyrights has won a permanent protective order against the perpetrator, Matthew Chan, who is also in the sights of stock photo agencies for thwarting their efforts to enforce photographers’ copyrights. The restraining order reflects an increasingly vitriolic tone and no-holds-barred personal attacks against copyright holders and their attorneys on Chan’s website, extortionletterinfo.com (aka ELI).

A Georgia state court judge issued the restraining order against Chan on February 28, at the request of Linda Ellis of Marietta, Georgia. Ellis writes and markets inspirational poetry, and is the author of several books. As a result of her efforts to protect her copyright by issuing demand letters to individuals and organizations who published her work without her permission, she was subject to attacks by Chan and his followers on the ELI website.

The court said Chan’s actions “placed the petitioner [Linda Ellis] in reasonable fear for [her] safety, because [Chan] contacted [Ellis] (and urged others to contact her) and posted personal information of the petitioner for the purpose of harassing and intimidating [her].” (more…)

Photographer Dennis Morris has won his lawsuit against the appropriation artist known as Mr. Brainwash for unauthorized use of a decades-old image (shown at right) of deceased punk rocker Sid Vicious.

A federal district court judge in Los Angeles recently granted Morris’s motion for summary judgment on the issue of copyright infringement. At the same time, the judge rejected a motion by defendant Thierry Guetta–aka Mr. Brainwash–for summary judgment on the grounds of fair use.

“To permit one artist the right to use without consequence the original creative and copyright work of another artist simply because that artist wished to create an alternate work would eviscerate any protection by the Copyright Act,” the judge wrote in his ruling, citing another ruling against Guetta from 2011 in a similar case.

The ruling for Morris added to a growing body of case law against appropriation artists who use the works of other artists as nothing more than raw material for their own works. The message from federal courts is that appropriation artists cannot claim fair use unless they parody the original work, or in some other way critique or comment upon them directly.

Morris had sued Guetta for infringement over unauthorized use of a 1977 photograph of Sid Vicious. The original image shows the punk rocker tilting his head and winking at the camera. Guetta, who is know for appropriating images of celebrities and modifying them, created seven image based on the Morris photograph. Some featured higher black and white contrast, some have less contrast, and some include added elements such as splashes of brightly colored paint, according to the court ruling.

There was no dispute that Guetta had copied Morris’s photographs, District Judge John A. Kronstadt wrote in his ruling. The issue before the court was whether Guetta’s uses of the image met the legal standard for fair use.

Courts apply a four-pronged test to weigh a fair use defense. Judges consider the purpose and character of the unauthorized use; the nature of the copyright work; the amount and substantiality of the portion of the original work that is used; and the market effect of the unauthorized work(s) on the original.

In this case, the first three factors weighed in Morris’s favor. The fourth (market effect) was inconclusive.

Most importantly, in considering the first factor, the court concluded that Guetta’s uses of the Morris photograph were not sufficiently transformative. In other words, they did not give the Morris photograph enough new expression, meaning or message, District Kronstadt explained in his ruling.

“The [original] photograph is a picture of Sid Vicious making a distinct facial expression. [Guetta's] works are of Sid Vicious making that same expression. Most of defendant’s works add certain new elements, but the overall effect of each is not transformative; defendant’s work remain at their core pictures of Sid Vicious,” the judge wrote.

Guetta had argued that his works were intended to comment on the persona of Sid Vicious in particular, and on the nature of celebrity in general. But the judge didn’t buy it, saying Guetta was effectively arguing that any use of copyrighted material in appropriation art is fair use. “But this is the precise argument that the Cariou court rejected,” referring to a district court ruling in New York in the case of Patrick Cariou v. Richard Prince.

In that case, the court ruled that appropriation artist Richard Prince violated photographer Patrick Cariou’s copyright by using some of his photographs as raw material for his own works, without commenting upon the original works or otherwise transforming their meaning. An appeal of that ruling is pending.

For an appropriation to qualify as a fair use, Judge Kronstadt explained, “There must be some showing that a challenged work is a commentary on the copyrighted one, or that the person who created the challenged work had a justification for using the protected work as a means of making an artistic statement.”

Considering the second factor–the nature of the copyrighted work–Judge Kronstadt concluded that the Morris photograph was at least a marginally creative portrait, not just a “recitation” of a fact. That weighted “at least slightly against a finding of fair use,” the judge wrote.

Considering the third factor–the amount and substantiality of the portion of the original work that was used–Judge Kronstadt concluded the Guetta used most of Morris’s photograph, including the central copyrightable elements. That also weighed against a finding of fair use.

Finally, the court considered what effect the Guetta images had on the market for Morris’s image, and concluded that the market effect was subject to dispute. But Judge Kronstadt went on to say that the issue was immaterial “because a lack of harm [to Morris's market for his image] would not change the determination of an unjustified use under the first factor.”

That first factor, to recap, was a consideration of whether Guetta’s images transformed the meaning of Morris’s image.

PDNonline is the leading photo magazine. This professional photographer magazine covers photo news and the best news photos. PDN Online, is a photography magazine and photos magazine which offers photography news and research on the latest trends in the photo industry. From photographic equipment and SLR digital camera reviews to editorial profiles of upcoming photographers, PDN Online has it all. For Photography News and updates, sign up for any of our Photo Magazine RSS feeds today!